R v Naima (Cri 771 of 2000) [2000] LSCA 86 (18 May 2000)

IN T HE H I GH C O U RT OF L E S O T HO In t he m a t t er b e t w e e n :- R EX vs S I B U S I ZO N A I MA R e v i ew C a se N o. 5 0 / 2 0 00 R e v i ew O r d er N o. 3/2000 C RI 7 7 1 / 2 0 00 Q u t h i ng District R E V I EW O R D ER T h is is the matter w h i ch c a me before me on an automatic r e v i ew f r om the resident magistrate Q u t h i n g. T he a c c u s ed w as c h a r g ed w i th three counts. T he first c o u nt w as the c h a r ge of the c r i me of H o u se B r e a k i ng w i th Intent to Steal a nd Theft. T he s e c o nd count, w as the charge of Theft C o m m o n. T he third c o u nt w as the c h a r ge of contravention of section 14 of N A T I O N AL I D E N T I TY A ND P A S S P O RT S E R V I C ES A CT N O. 9 of 1 9 8 4. T he a c c u s ed p l e a d ed guilty a nd w as convicted on all counts. In respect of c o u n ts II a nd HI the statement of agreed facts contains all the essential e l e m e n ts w h i ch m u st be established in order to sustain the conviction of the c h a r g es in c o u n ts t wo a nd three. T he c o n v i c t i on a nd sentences in respect of t h e se t wo last c o u n t s, are f o u nd to be in order. I a c c o r d i n g ly c o n f i rm b o th c o n v i c t i on a nd s e n t e n ce in respect of c o u n ts II a nd III. As far as c o u nt I is c o n c e r n e d, there are p r o b l e ms of insufficiency of e v i d e n ce that s u p p o r ts the conviction. I p r o c e ed to deal w i th the q u e s t i on of e v i d e n ce as disclosed in the s t a t e m e nt of a g r e ed facts . T h at s t a t e m e n ts of a g r e ed facts is as follows:- " the c r o wn will s h ow that the a c c u s ed w as p r e v i o u s ly e m p l o y ed by the p a r e nt of the child w h o se i t e ms of clothing, w e re f o u nd m i s s i ng f r om the c a r a v an w h i ch the father u s ed as a living r o o m. E v i d e n ce will s h ow that the c a r a v an w as noticed to h a ve b e en b r o k en into s o m e t i me in F e b r u a ry 2 0 0 0. T h at c a r a v an h ad b e en p r e v i o u s ly closed a nd l o c k ed by this child w ho w as a w ay at the t i m e. T h is child e x a m i n ed h er p r o p e r ty a nd f o u nd the i t e ms listed in the c h a r g e, m i s s i n g. T he father a nd the child h ad n ot g i v en their p e r m i s s i on to a n y o ne to take a w ay that property." T he s t a t e m e nt of a g r e ed facts is v e ry brief a nd v a g u e. It d o es n ot s h ow precisely, h ow a nd w h en the b r e a k i ng in w as d o ne a nd the p r o p e r ty r e m o v ed in relation to that breaking in. The statement does not show h ow the breaking in was done. There is also an omission of the facts as to h ow entry was effected if at all entry was made into that caravan. It has come to my notice that once an accused tenders a plea of guilty, the public prosecutor, does not bother to make sure that all the facts which establish the commission of the offence charged are put before the court. The plea of guilty by the accused, by itself, is not sufficient to sustain conviction. There must be facts which show the court that the offence charged was in fact committed. In our present case, the accused is charged with the crime of House Breaking with intent to Steal and Theft. There are essential elements of this crime, which must be established by the facts of the case. These essential elements are five in all. They are (a) Unlawfully; (b) breaking; (c)entering; (d) premises; (e)Intent. SOUTH AFRICAN CRIMINAL LA WAND PROCEDURE. Volume II Common Law Crimes Third Edition by JRL Milton at page 796. The entry into the premises must be unlawful,. R v FAISON 1952 (2) SA 671. It must be shown in the facts that the accused had no right to enter the premises. This accused, is said to have been employed by the parent of the child whose items of clothing were allegedly taken by the accused. The statement does not disclose in what capacity was the accused employed.. The statement of facts does not disclose whether or not the a c c u s ed h ad a ny right to enter the premises of the e m p l o y e r. It m u st be specifically alleged in the facts that at the time the entry w as m a de by the a c c u s ed into the caravan, he w as not at all entitled to enter those premises. R v W I L LY O V A M B O L A N D 1 9 31 S WA 11 (b) Breaking To 'break' premises m e a ns to create a w ay into those premises by displacing s o me obstruction w h i ch f o r ms part of those premises. R v F O U R I E; R v L O UW 1 9 07 O RC 5 8. T he removal, [for e x a m p le of a lock] or displacement of a ny obstacle w h i ch bars entry into that caravan, should h a ve b e en alleged in the facts. R v N G O B E ZA 1 9 92 1 SA CR 6 10 ( T) 6 1 4. T he facts do not s h ow h ow the conclusion that the caravan w as b r o k en into, w as arrived at. W as the d o or or w i n d ow b r o k e n? T h e re n e ed not be actual d a m a ge to anything obstructing the w ay into the caravan. M e re o p e n i ng of the closed d o or without the authority or permission of the o w n er to o p en it, is breaking in. T he facts m u st specifically address h ow the conclusion that the caravan w as b r o k en into, w as arrived at, W h at exactly led t h em to conclude that the caravan w as b r o k en into? W h at obstruction w as r e m o v ed if a ny obstruction w as at all r e m o v ed in order to gain unauthorised access into the caravan? ( c) E n t e r i ng T h e re is no allegation that the a c c u s ed e n t e r ed the c a r a v a n. T he c o m p l a i n a nt m u st h a ve m a de s o me o b s e r v a t i o ns that entry into the c a r a v an w as effected. T he s t a t e m e nt of facts s h o u ld s h ow h ow the c r o wn w as g o i ng to p r o ve that the a c c u s ed e n t e r ed the c a r a v a n. T h o se facts w h i ch g a ve the c o m p l a i nt an i m p r e s s i on that s o m e o ne h as b e en in the c a r a v an s h o u ld be specifically stated. T h e re is no m e n t i on that entry into the c a r a v a n, w as effected a nd h ow it a p p e a rs to h a ve b e en m a d e. ( d) P r e m i s es It is m e n t i o n ed in the s t a t e m e nt of a g r e ed facts that the c o m p l a i n a nt u s ed that c a r a v an as the living r o o m. C e r t a in a s s u m p t i o ns m ay be m a de f r om this statement. Firstly, that it m u st h a ve b e en p e r m a n e n t ly p a r k ed there for that p u r p o s e. S e c o n d l y, that it w as b e i ng u s e d, primarily for h u m an habitation. T h at b e i ng s o, it d e s e r v ed the protection of the sanctity of a h o m e. On this aspect, the facts t h o u gh n ot detailed they s o me h ow p r o v i de a basis f r om w h i ch a s s u m p t i o ns car safely be m a de to fill in the g a ps in that s t a t e m e nt of a g r e ed facts. T he intention to steal m ay be inferred f r om the fact that certain i t e ms w h i ch w e re (e) Intent in the caravan w e re f o u nd to be missing i m m e d i a t e ly after the c a r a v an w as b r o k en into. On this aspect, the facts alleged s h ow this court that there are items of clothing w h i ch w e nt missing. T he statement fails to s h ow precisely at w h at stage in relation to the breaking in w e re the items f o u nd missing. T he material facts w h i ch w o u ld support the conviction on the charge of H o u se B r e a k i ng w i th intent to steal a nd Theft h a ve b e en omitted. T he statement of facts d o es n ot s h ow if those items w e re f o u nd a nd w h e re they w e re f o u n d. T he facts as stated by the public prosecutor a nd accepted by the accused, do n ot disclose the c o m m i s s i on of an offence of H o u se B r e a k i ng with intent to steal a nd theft. T h e re is no link b e t w e en the alleged c r i me a nd the accused. T he conviction on this count is q u a s h ed a nd the sentence set aside. T he a c c u s ed w as properly convicted a nd sentenced in respect of c o u n ts 2 a nd 3. T he conviction a nd sentence in respect of those t wo last counts are c o n f i r m e d. K. J. G U NI J U D GE 18th M ay 2000 cc: T he Resident Magistrate - Quthing O /C Police _ Q u t h i ng O /C P r i s on - Q u t h i ng O /C C e n t r al P r i s on - M a s e ru 7